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6.17.2014

Dealing with Difficult People in Litigation Creatively--Part I

Recently, I substituted for my colleague in teaching his
Professional Responsibility class. The topic assigned was
"Litigation Abuse." We covered the ways in which one
can, through Federal Rules of Civil Procedure (e.g.,Rule 11, Rule 26, and Rule
37), seek judicial relief from the extreme misconduct addressed by
those Rules. The problem, however, is that most litigation
abuse falls outside of the extremes. The Rules are
not well-suited to deal with just plain boorish conduct of a lawyer, party, or
some other person of the legal system. Although Rule of Professional
Conduct 3.4 outlines behavior that would be considered "unfair," and
theoretically subject to discipline, this Rule outline extreme forms of
unfairness. Moreover, the Rule is not one for which discipline is sought
very often.

Nevertheless, many lawyers suffer needlessly
because they think putting up with people who act like jerks is
part of the job. Over years of observing lawyers who do
NOT assume unacceptable behavior has to be tolerated, I describe below how
these lawyers taught me (1) to stop putting up with the
inappropriate behavior of others and (2) to develop ways to avoid reacting
to others inappropriately myself . These methods fall
into two parts--general dealings with others in litigation (this post) and
conduct that occurs often in discovery (a future post).

Dealing with Other's Inappropriate Behavior

Here, it is especially important to remember that people
will treat someone in the manner that one lets that person treat them.
Some folks need to be told you will not allow them to cross your boundaries of
unacceptable behavior. For instance, if lawyers curse a lot or yell
on calls, in conferences, etc., you can tell them—quietly but firmly—that the
cursing or yelling is not acceptable to you. You can also tell them that
the call or conference is over and, when the lawyer can discuss matters
without cursing or yelling, you will be glad to do so. Every time I
had to do this with another lawyer, that lawyer changed the way she or he
interacted with me. I had to repeat the message more than once in
"hard" cases, but even the most irascible person learns that if
she/he wants to get anything done in a case, she/he needs to stop the
inappropriate behavior.

In a variety of ways, opposing counsel, parties, or others
can get under your skin. It may be an e-mail or letter attacking
you. It may be a brief you read that misstates authorities.
What I learned was that, if I every found myself angry, I had better
avoid avoid sending e-mails, letters, or responding in any way.
Instead, the best course is to take a break. If I had started
an e-mail, I had to save it to drafts. E-mails are among
the easiest ways to react in anger because they are so easy to
send. If we want to behave in a civil manner, and avoid that which
we find offensive, realize the great risk of emails (or, I suppose also, of
text messages). Often, the e-mails saved to drafts ended up being deleted
after I regained my perspective.

Three Questions as a Rule of Thumb for Any Response
(Electronic, Written, or Oral)

Some of the best advice I ever received was to ask, before
sending any communication or making any comments, to ask three questions:
“(1) Does it [whatever I want to put in writing or say to the other
peson] need to be said/written? (2) Do Ineed to be the one to
say it/write it? (Is really within my responsibility to tell the other
person what I want to say, or is my ego getting riled up so that the
response was more personal gratification than something necessary);
AND (3) Does it need to be said by me right now—or should I wait, run it by a
trusted friend, and possibly not say/write anything? Only if the answer
to all three of these questions was “yes” was I to write the e-mail,
send a letter, or tell the other person whatever I had on my mind.

I have to admit it took a long time for me to get in
the habit of asking the three questions and objectively answering them.
I even had to put "1, 2, 3" taped on post-it notes
attached to my phone and desktop to keep the reminder there until
asking the questions became a habit. When it
finally did become more of a habit (with occasional slips), I
realized something unexpected. I now had

"extra" time from not engaging in
unnecessary, counter-productive communications--time to do things that actually
helped move the case forward, or maybe to go home early.

Professional Characterizations in Motions, Briefs, or
Other Filings

In briefs and other court filings, one can write
well-reasoned motions or briefs that correct inaccuracies of one's opponent
without becoming vituperative. Don’t use highly charged words like
“misrepresents” the facts/law. Say instead "X is mistaken in
her reading of Y case," or "X is apparently mistaken in her understanding
of the facts." Such an approach is far more effective
than characterizing your opponent as deceitful. It helps to
ask oneself whether, if you were on the other side and received the brief, how
would you like the way it was written? If the brief seems aimed at the
lawyer, and questions her/his character, you probably wouldn’t like it. If
instead the brief seems focused on the case—the facts and law, and gives the
benefit of the doubt (e.g. mistaken vs. misrepresent)--you’d probably feel
better about the way the other side treated you. If doing unto others
isn't motivation enough, the secret with which I conclude this post ought to
convince you.

A secret that most experienced litigators know is that
judges do not like written arguments that attack the other side personally.
Again, the brief writer can note errors in factual representations or in
descriptions of the law by characterizing them as mistaken. Judges will
at times conclude that a party has crossed the line in representations to the
court, but if your brief suggests it must have been accidental, the judge sees
you as taking the high road. You gain credibility while the opponent
loses it. Of course, in one's own briefs, it goes without saying that
one needs to be scrupulously accurate in reciting facts and fair in
representation of what cases hold or stand for. You don't want to be the
one whose brief allows a party to contend that you were inaccurate. You
will, at some point, have that happen--but when it does, you want the judge to
see on reading the record and the cases that the accuser is the one who is
being unfair. Credibility with the court is precious.

1 comment:

Throughout life you're going to come across difficult people like this. It's important to know how to act with these ideas and tips. I'm really impressed with what the civil litigation solicitor was able to do for us. Sylvia | http://www.afterhourslegal.com.au/civil-litigation/

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Beyond the Rule is a blog recognizing that teaching a person to be a lawyer involves educating the whole person, and in particular assisting the law student to form a moral compass so that the student is more likely to develop a professional identity and practice law ethically.